Flintoft v Victorian WorkCover Authority
[2025] VCC 201
•25 February 2025 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-03333
| LINDA FLINTOFT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2025 | |
DATE OF JUDGMENT: | 25 February 2025 (ex tempore) | |
CASE MAY BE CITED AS: | Flintoft v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 201 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Causation
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle[2009] VSCA 170;
Judgment: Application granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Hevey SC with Mr B House | Henry Carus & Associates |
| For the Defendant | Mr S Pinkstone | Wisewould Mahony |
HIS HONOUR:
1In this matter I propose now to read brief oral reasons. They will obviously be transcribed. I will revise those in due course and they will come out to the parties.
2There is one central issue in this matter and that is whether or not the plaintiff's condition of chronic regional pain syndrome (“CRPS”) or central nervous sensitisation (“CNS”) is caused by an injury which she sustained at work on 25 May 2001 to her neck.
3While the defendant does not concede that the plaintiff has totally lost her capacity for work, it does not suggest that there is any evidence that contradicts this proposition. The parties agree that if I was to find the plaintiff was totally incapacitated for all work as from February 2002 she would be entitled to determinations for both loss of earning capacity and pain and suffering in accordance with Advanced Wire & Cable Pty Ltd v Abdulle.[1]
[1][2009] VSCA 170
4For the reasons which follow I find that the plaintiff is entitled to a determination that she has suffered serious injury arising from the injury she sustained at work on 25 May 2001.
Relevant History
5Turning to the relevant background history. The plaintiff was born in February 1963. She completed high school, then left to work as a secretary. She worked at Toyota for a period of time of around seven or eight years and then did some temporary contract secretarial work. She married and had two children.
6In about 1999 she returned to work as a personal care attendant with the Williamstown City Council. In late 1999 she transferred to the Wyndham City Council, who was her employer at the date of injury. In that role she worked permanent part time of about thirty hours per week, which were usually from 9.00am to 3.00pm every weekday.
7I interpolate to note that her husband was an interstate truck driver. This required him to be away from home for days if not weeks at a time. This is relevant because it was said that the plaintiff had to be very physically active to run the house, take care of the children and perform her personal care and work duties. The plaintiff accepted all of that.
The Incident
8She described the incident in the following terms: at PCB101, paragraph 9:
“On about 25 May 2001, I was taking a client shopping, when I suffered an injury to my neck. I suffered the injury as I attempted to lift the client's heavy and awkward wheelchair out of my sedan vehicle. I suffered immediate neck pain. The wheelchair was an older steel frame style and was very heavy.”[2]
[2]Plaintiff’s Court Book (“PCB”) 101 at paragraph [9]
9The plaintiff's evidence was that she suffered the injury on a Friday in the late afternoon so went home, and took some Panadol before going to pick up her children. Over the weekend she gave evidence that she took Panadol frequently and then returned to work. She worked from Monday to Wednesday. During this time she gave evidence that she simply wanted to get on with things as she thought she had pulled a muscle.
10On Wednesday, however, she reported the injury to her employer but did not lodge a worker's compensation claim. She deposed and I quote: PCB101 at paragraph [10]”
“I reported the injury to my employer. At the time, I did not lodge a workers’ compensation claim. I suffered from a niggling pain, but I was hoping that it would just go away. I managed the pain with occasional Panadol, and sometimes Deep Heat. I did what I could to protect my neck from further injury and persevered with the pain. At that stage, I had two young children, and I wanted to keep working. The pain gradually worsened.”[3]
[3]PCB 101 at paragraph [10]
11The preliminary incident report filed with the employer is broadly consistent with the plaintiff's evidence in her affidavit and to that given in cross-examination.[4]
[4]PCB 106
12The plaintiff's evidence was that thereafter she continued on working normally in a job which she described as “physical”. In addition, she took care of her two children and did all the household tasks. Particularly she gave evidence in cross-examination that because her husband was away for weeks at a time she would also have to do physical jobs outside, such as mowing the lawn.
13Between 25 May 2001 and 1 February 2002 she did not see a doctor or physiotherapist, or otherwise report difficulties with her injury to any medical practitioner. The plaintiff deposed to an event occurring in February 2002 in the following terms:
“… I woke up in the morning and I couldn't move my neck. I had to roll to get out of bed. I called my neighbour to help me, and she drove me to see my long-term general practitioner, Dr Nader Abou-Seif, at Hogans Road Medical Centre, Hoppers Crossing.”[5]
[5]PCB 102 at paragraph [12]
14At that time the plaintiff was actually a patient of Dr Braude. It appears that she consulted him around this time, perhaps 1 February 2002. He referred her to physiotherapy with Mr Toby McIntyre.[6] I note there are no clinical records of Dr Braude or Mr McIntyre available.
[6]PCB 118
15The defendant sought an inference be drawn that the evidence contained in those notes would not be of assistance to the plaintiff's case. There was no explanation provided by the plaintiff as to the absence of the notes, and in that circumstance I am prepared to draw the inference sought by the defendant.
16The only note of Mr McIntyre is contained in the Physiotherapy Treatment Notification form dated 4February 2002.[7] In that note Mr McIntyre recorded the date of injury as being from May 2001. No particular circumstances of injury are recorded. It was thought that the current symptoms related to the neck, shoulder and arms.
[7]PCB 118
17It also appears that Dr Braude had referred the plaintiff for x-ray. That occurred on 5 February 2002.[8] There was no abnormality detected on radiology.
[8]PCB 112
18The plaintiff lodged a worker's compensation claim form with her employer on 6 February 2002.[9] It recorded that the injury was reported on 30 May 2001 to a Ms Nicole Hill of the defendant. It recorded that the cause of the injury was a lifting of the wheelchair out of the boot.[10] It listed both Dr Braude as the treating doctor and Mr McIntyre as another health practitioner involved in her care. The employer claim report is at PCB110. It recorded the date of injury as being 25 May 2001.
[9]PCB 107
[10]PCB 108
19A recounting of those forms indicates that they are broadly consistent with the plaintiff's affidavit evidence and the claim that she brings. That is of suffering injury on 25 May 2001, which was the instigator of all her problems.
20By reason of the narrow focus of this case, it is not necessary to thereafter detail the plaintiff's medical history. It is sufficient to state the plaintiff gave evidence that she was referred to Dr Nader Abou-Seif at Hogans Road in Hoppers Crossing. She has remained under his care since that time. He arranged for her to consult with a variety of different practitioners, particularly Dr Peter Blombery. He formed the view she had developed CRPS.[11] This was a diagnosis as of January 2005. She has been treated for this condition since that time.[12]
[11]PCB 30
[12]PCB 18
21Physically, she has not been diagnosed with any other abnormal structural problem, despite investigation by orthopaedic specialists and obtaining neurosurgical opinion. She has not worked at all since 20 February 2002.
Causation
22As to causation, the defendant made several arguments as to why the plaintiff could not prove, on the balance of probabilities, that her chronic regional pain CRPS or CNS were caused by the incident at work and stemmed from the injury to her neck. The first was that the incident itself was minor in nature, it required only a few Panadol over the course of the weekend, it did not result in any time off work, and did not require a consultation with a doctor or physiotherapist.
23Furthermore, the defendant submitted, in the period from May 2001 to February 2002, this continued to be the case. Added to this was the fact that the plaintiff had to do all the household tasks, given her husband was frequently away on interstate truck-driving trips. The defendant said this demonstrated she had a full physical capacity, implying comprehensive recovery from any neck strain. This strongly suggested, in the defendant's submission, that the condition of the neck was only a transitory injury which had arisen in May 2001, and had resolved shortly thereafter. I would reject this argument for the following reasons.
24The plaintiff has a solid work history. In addition to this, she was undoubtedly a physically-capable woman, able to not only hold down her job, but care for the children in the home, given her husband's occupation. The plaintiff's Senior Counsel suggested that, in context, the plaintiff's response of simply attempting to get on with what she thought was a muscle strain, was no more than a reflection of her strong will and stoicism, in the face of injury, to keep the home functioning.
25Furthermore, the plaintiff deposed in her affidavit material to having ongoing pain in her neck and shoulder after onset on 25 May 2001. Her affidavit further deposed that that condition worsened during the course of 2001 and the early part of 2002. This was contested by the defendant.
26She was taken in cross-examination to notes which suggested that there was not a worsening of her condition during the course of 2001. In particular, she was taken to treating doctor notes of 11 February 2002[13] which recorded that her pain had in fact settled after about one week.
[13]At Defendant’s Court Book (“DCB”) 29
27However, when the note is looked at in total, it can be seen that Dr Abou-Seif's record is of "mild persisting problems" after the date of injury. This is consistent with the plaintiff's complaint of niggling pain ongoing after 25 May 2001.
28The plaintiff denied she had said her problems had in fact settled after one week and I consider that, overall and in context, the note supports this. This is similar to a recording that she was taken to in a report of the medico-legal practitioner, Dr Ian Jackson, from 19 November 2007. He had recorded that there were less severe symptoms after the date of the injury.[14]
[14]Defendant’s Supplementary Court Book (“DSCB”) 23
29This clearly accepts ongoing problems after onset. It is largely consistent with the plaintiff's evidence and contradicts the defendant's argument of the condition being only a transitory one. This is similar to a medico-legal psychiatrist's history who recorded in 2005 that there was ongoing niggling injury.[15]
[15]DSCB 23
30While there is some inconsistency in the plaintiff's evidence between her affidavit in these notes as to whether there was persistent pain, or that it worsened, I find that she had ongoing persistent pain after May 2001. While it was not significant enough for her to attend on a physiotherapist or doctor, this seems to be in keeping with her determination to press on as best she could, given the responsibilities she had at home and work at that time.
31To the extent that it could be said the plaintiff was exaggerating her symptoms after May 2001 by describing them as "worsening", I do not think much turns on this, given there was the ongoing presence of symptoms. I am prepared to accept, however, that this represented a slight unreliability in her evidence on this point alone.
32Second, the defendant sought to suggest that the plaintiff was unreliable as a witness. Part of this attack revolved around why she had moved doctors from Dr Braude, her treating doctor, to Dr Abou-Seif. It will be recalled from the extract of her affidavit above that she had made no mention of Dr Braude's involvement in her care in February 2002, but instead nominated Dr Abou-Seif as her treating doctor in her affidavit.
33There was an implicit suggestion in the defendant's cross-examination that this was for an untoward purpose. That is, to attend Dr Abou-Seif who was more favourable in the making of a worker's compensation claim. This suggestion must be rejected. The plaintiff made clear that it was a physiotherapist that had recommended she go to Dr Abou-Seif. She had simply followed that advice.
34While she had previously attended upon Dr Braude, this had been infrequent and he was simply, as she said, a doctor that she saw at the clinic. I accept she simply followed the advice of the physiotherapist to see Dr Abou-Seif. Furthermore, the history tells against the defendant's submission. This is because the plaintiff explicitly did not make a WorkCover claim in 2001, even though she had filed a notice of injury with her employer.
35If she was motivated by any improper aims, then it is completely unexplained why she did not lodge a worker's compensation claim at this stage. However, it is clear her affidavit is incorrect in not nominating Dr Braude's involvement in her care in February 2002, but this must be balanced against the claim form, which contemporaneously did note his involvement.
36Overall, this supports my finding that there was no intent to mislead as to his involvement. However, I do accept the defendant's submission that there is some unreliability in her affidavit on this point alone.
37The defendant also submitted the plaintiff’s evidence was unreliable in her recounting of the symptoms associated with the onset of her injury. I have touched on this briefly above, as to whether or not her symptoms worsened during the course of 2001.
38In addition, the defendant submitted that, given the elapse of time from the onset of injury to the time when she swore her affidavit, there must be real doubt attached to the accuracy of her evidence regarding the onset of symptoms.
39In this case, though the plaintiff was only cross-examined for a short period of time, I consider the evidence she gave was frank and honest. For example, she freely admitted that when her husband was away she had to do all the work around the house. This involved not only caring for the children, but also extended to outdoor physical garden care, such as mowing the lawns. This was clearly an admission that she was able to do physical work after the onset of problems in May 2002.
40While there was some unreliability associated with the worsening of her condition after May 2001, as she deposed, and Dr Braude's involvement, which I have touched on, overall, I found her evidence was entirely reliable and I accept her as a witness of truth.
41Third, the defendant contrasted the plaintiff's condition in May 2001 to that in February 2002. The defendant focused on the dramatic alteration in her symptoms in February 2002 to suggest, it seemed to me, that something completely new had occurred. As part of this, the defendant submitted it was for the plaintiff to prove that this worsening had a causal link to the events of May 2001.
42The plaintiff gave frank evidence about this period. She described an entirely new set of problems which were much worse in February 2002. She accepted that the problems now extended into her right arm and were of such severity that she needed ongoing consultations with doctors, referral for physiotherapy, and then other specialist appointments. She accepted, further, she was no longer able to work after the onset of symptoms in February 2002.
43By itself, the onset of these worsening symptoms do not tell against the plaintiff's case. This is because, first, the fact that there had been ongoing symptomatology since May 2001, as I have found. This indicates very strongly that the problems from May 2001 had not resolved, but were ongoing in some form. I would reject the notion that the injury from May 2001 had resolved by the time of the February 2002 events, or can be separated from the worsening symptoms.
44To this end, the defendant relied on the report of medical practitioner, Dr Elizabeth Lenaghan, who examined the plaintiff in 2003. She considered there was no link between the two events. I do not consider that any sound reliance can be placed on Dr Lenaghan's opinion. She referred to the plaintiff as “manipulative” at one point in her report, as part of her finding that the plaintiff was wholly unreliable.
45While other practitioners have found evidence of non-organic signs, there is no challenge in this case to the fact that the plaintiff has CRPS or CNS. Clearly, Dr Lenaghan is incorrect then. Furthermore, she did not have Dr Blombery's opinion, and this is critical, given the CRPS diagnosis and his particular specialty as a vascular surgeon in this regard.
46Further, the defendant relied on Mr Armin Drnda for this point. However, an examination of his report, I consider, supports the plaintiff's case. He has reported in 2024 and then again at the beginning of 2025. He considers there was an element of central sensitisation in the plaintiff's presentation. That is accepted by the defendant. Tellingly, however, he makes the following comment:
“The central sensitisation is due to scientifically proven organic changes after having suffered an episode of acute nociceptive pain caused by the initial injury. These changes result in the chronic pain, sufferers not only becoming prone to suffer chronic or persistent pain but also prone to experience spontaneous flare-ups or increased pain independent of any other factors or pathology. These diagnoses are based on the history of Ms Flintoft's condition as well as my examination.”[16]
[16]DCB 23
47Quite clearly, Mr Drnda was addressing himself to the circumstances of this case. He has taken a history of an initial injury, which no doubt refers to the incident in May 2001. He has then gone on to describe spontaneous flare-ups or increased pain independent of any other factors or pathology, which must in terms be referring to the events of 2002.
48Similarly, he notes that sufferers become prone to suffer chronic or persistent pain. As I have set out above, she did experience persistent pain from May 2001 onwards.
49Quite clearly, Mr Drnda is describing the circumstances the plaintiff has faced. When he concludes that he has made these diagnoses based on the history of her condition, it is undoubtedly, in my opinion, a reference to his specific consideration of the facts in this case. I consider that his opinion supports the plaintiff's case on causation.
50In addition to this is the reporting of Dr Blombery, which I have touched on above. His opinion as a treating specialist diagnosing in 2005, reasonably contemporaneously to the onset of symptoms, is supportive of the plaintiff's case on causation.[17]
[17]PCB 30 and particularly PCB 32 at question 2.
51He quite clearly describes the onset of CRPS after the initial insult in May 2000. (I interpolate and recognise that he has incorrectly referred to the date of 2000 as opposed to 2001).
52Given he was the treating practitioner opining in reasonably close proximity to the onset of symptoms, and the development of the injury and CRPS overall, I place great weight on his opinion, particularly noting his specialty.
53There is also the treating doctor's opinion contained at PCB120. While expressed in broader terms, it still supplies medical support for the causal link between the May 2001 insult and the development of her worsened condition. This opinion was provided in March 2002, very soon after the onset of the worsened symptoms. It is a contemporaneous recording which is particularly useful and I rely on it.
54Added to this is the context of the presentation in February 2002. It occurs eight months after the onset of pain in the neck region. This provides some temporal connection. During that time, the condition had not completely abated. Its worsening in February 2002 was to largely the same anatomical area. This, I consider, is a further area of consistency in the plaintiff's claim and lends a link between the events in May 2001 and those in 2002.
55These findings are strengthened because it was, further, a presentation which the medical opinion considers was consistent with the onset of CRPS and CNS, as I have touched on above. Given these matters, I find the plaintiff did suffer injury to her neck in May 2001. Causally related to this is the development of CRPS and CNS.
56It was not seriously put that the plaintiff had a capacity for work, and having considered all the material and particularly the report of Dr Eman Awad, the occupational physician,[18] I find that the plaintiff has no current work capacity which is likely to persist for the future. That has been the state since 2002.
[18]PCB 222
57I will therefore grant the plaintiff a determination that she has sustained a serious injury for loss of earnings purposes. On the principles of Abdulle, I am not required to make further findings in respect of the pain and suffering component. However, I would briefly do so.
58I would find that the plaintiff has sustained a serious injury for pain and suffering purposes. I do so on the basis that she has not been able to work in her chosen field since 2002 and has been on long-term serious medication since that time. I accept that she is in daily pain and I otherwise accept her affidavit evidence as to the impairment consequences that have resulted. Similarly, I accept the lay affidavit material to that effect. For these reasons I will find for the plaintiff.
---
0